480 F.

3d 47

UNITED STATES of America, Appellee,

v.
Artin H. COLOIAN, Defendant, Appellant.
No. 06-1357.

United States Court of Appeals, First Circuit.

Decided March 20, 2007.
Heard December 5, 2006.

Mary June Ciresi, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Robert
Clark Corrente, United States Attorney, and Terrence Donnelly, Assistant
United States Attorney, were on brief, for appellee.
Before TORRUELLA, Circuit Judge, CYR, Senior Circuit Judge, and
HOWARD, Circuit Judge.
TORRUELLA, Circuit Judge.

On April 2, 2001, defendant-appellant Artin H. Coloian was indicted on

charges of bribery and conspiracy to commit bribery. The case went to trial and
on June 27, 2002, Coloian was acquitted of both counts. Three years later,
Coloian filed a motion to expunge his criminal record on equitable grounds
under the original district court case number. The government responded that
the district court lacked jurisdiction to consider the motion and that the
requested relief was inappropriate in any event. The district court concluded
that it did have jurisdiction to expunge records, but that expungement was not
warranted in Coloian's case. After careful consideration, we vacate the district
court's order and remand for dismissal for want of jurisdiction.

I. Factual Background
2

On April 2, 2001, a federal grand jury returned a superseding indictment

charging Coloian, an attorney and former Chief of Staff for the mayor of
Providence, among others, with various public corruption offenses. Coloian's

case proceeded to trial on two counts: bribery and conspiracy to commit

bribery. Those charges were based on allegations that Coloian had been
involved in a scheme whereby Vincent A. Cianci, Jr., then mayor of
Providence, was paid $5,000 for obtaining a job for one Christopher Ise. On
June 27, 2002, following a four-day trial, a jury acquitted Coloian of both
counts.1
3

On December 8, 2005, more than three years later, Coloian filed a Motion to
Expunge under the original district court case number in the United States
District Court for the District of Rhode Island.2 In that motion, Coloian asked
the court to "expunge his record with all due dispatch." Coloian asserted that
expungement was warranted on equitable grounds because the "stigma" of
having been charged "is extreme and unusual" and his arrest and trial resulted
in impediments to "his ability to practice law and business." Coloian also filed a
related motion to seal the records.3

The government filed a consolidated response in which it challenged the court's

jurisdiction to expunge Coloian's record on equitable grounds and argued that,
even if jurisdiction existed, the requested expungement was inappropriate given
Coloian's circumstances. In reply, Coloian reasserted his complaints of stigma
and made vague allegations of "zealous prosecution" during the course of the
grand jury proceedings in his case.

At a February 10, 2006 hearing, Coloian conceded that nothing in the criminal
record had "disqualif[ied] him for anything that he might apply for in the
future," but emphasized that the record appeared on his credit report, and that
he was questioned about it by banks, potential clients and friends. Coloian
suggested that he was different from other acquitted defendants in that he was a
"practicing attorney" and "a member of the business community," and as such, a
criminal record was particularly damaging because character and reputation are
of particular importance in his chosen career.

In an oral disposition, the district court first concluded that "courts do have
inherent authority and inherent control over their records and can, in appropriate
circumstances, expunge records, but that power should be very sparingly
exercised." The court noted that expungement would be appropriate upon a
showing that the proceedings had been unlawful or invalid, or the record of the
proceeding caused "extreme hardship" in a particular case. However, the court
found that Coloian had not presented "anything even approaching satisfaction
of either of those criteria."
On appeal, Coloian contends that the district court acquired and retained

On appeal, Coloian contends that the district court acquired and retained
subject matter jurisdiction over this case once the indictment was filed against
him pursuant to 18 U.S.C. 3231. He further asserts that the district court has
ancillary jurisdiction to adjudicate and determine matters incidental to the
exercise of its primary jurisdiction. Coloian contends that because his motion to
expunge his criminal record relates to the charges in the indictment and
"remain[s] a public record and record of the District Court," the district court
has ancillary jurisdiction over the expungement of the criminal records.4 We
disagree.

II. Discussion
8

We review the threshold jurisdictional issue de novo. See Baella-Silva v.

Hulsey, 454 F.3d 5, 10 (1st Cir.2006).

This case presents an issue of first impression in the First Circuit. The only case
in this Circuit to have addressed this issue, albeit indirectly, is Reyes v.
Supervisor of the DEA, 834 F.2d 1093 (1st Cir. 1987). In that case, we held that
"the court below did not commit reversible error by refusing to exercise its
equitable discretion to expunge Reyes' files. That power is a narrow one, and
has been used more often to expunge records of unconstitutional convictions."
Id. at 1098 (citation omitted). Although this holding assumes that courts are
empowered to order expungement based on equitable considerations, the
question of the district court's jurisdiction to order the expungement was not
squarely before the court. We must now determine whether a district court has
ancillary jurisdiction to adjudicate a motion to expunge criminal records based
purely on equitable grounds.

10

A district court has original jurisdiction over "all offenses against the laws of
the United States." 18 U.S.C. 3231. We have held that "[o]nce subject-matter
jurisdiction has properly attached, courts may exceed their authority or
otherwise err without loss of jurisdiction." Prou v. United States, 199 F.3d 37,
45 (1st Cir.1999). However, by providing for a deadline for notices of appeal
from a court's judgment, Rule 4(b) of the Federal Rules of Appellate Procedure
"is a jurisdictional limitation upon the powers of the district court after a
judgment of conviction has been entered." United States v. Sumner, 226 F.3d
1005, 1013 (9th Cir. 2000) (citing 18 U.S.C. 3562(b); United States v.
Dumont, 936 F.2d 292, 295 (7th Cir.1991)). Still, a district court may assert
ancillary jurisdiction "to adjudicate claims and proceedings related to a claim
that is properly before the court." Black's Law Dictionary 868 (8th ed.2004);
see also United States v. Dunegan, 251 F.3d 477, 478-79 (3d Cir.2001) ("A
federal court invokes ancillary jurisdiction as an incident to a matter where it
has acquired jurisdiction of a case in its entirety and, as an incident to the

disposition of the primary matter properly before it. It may resolve other related
matters which it could not consider were they independently presented.").
11

In Kokkonen v. Guardian Life Insurance Co. of America, the Supreme Court

shed some light on the contours of a district court's ancillary jurisdiction. 511
U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). In that case, the Court
unanimously held that a district court lacked subject matter jurisdiction to
enforce a settlement agreement it had approved where its accompanying order
of dismissal did not reserve jurisdiction. Id. at 378, 114 S.Ct. 1673. In so
holding, the Court began by reiterating that "[f]ederal courts are courts of
limited jurisdiction. They possess only that power authorized by Constitution
and statute, which is not to be expanded by judicial decree." Id. at 377, 114
S.Ct. 1673 (citations omitted). The Court went on to state that federal courts'
ancillary jurisdiction serves two purposes: "(1) to permit disposition by a single
court of claims that are, in varying respects and degrees, factually
interdependent; and (2) to enable a court to function successfully, that is, to
manage its proceedings, vindicate its authority, and effectuate its decrees." Id.
at 379-80, 114 S.Ct. 1673 (citations omitted).

12

The Court first noted that the claim originally before the district courtthe
claim it dismissedhad nothing to do with the claim for breach of the
settlement agreement; "it would neither be necessary nor even particularly
efficient that they be adjudicated together." Id. at 380, 114 S.Ct. 1673. As such,
the district court's assertion of jurisdiction could not be said to serve the first
purpose of ancillary jurisdiction. Id. With respect to the second purpose, the
Court stated that the "inherent power" requested in that casethe power to
reopen the case to enforce the settlement agreementwas "quite remote from
what courts require in order to perform their functions," given that the district
court's only order in the underlying case was that the suit be dismissed, "a
disposition that is in no way flouted or imperiled by the alleged breach of the
settlement agreement."5 Id.

13

In view of the Supreme Court's instruction on the purposes of ancillary

jurisdiction, we must determine whether Coloian's request for the expungement
of his criminal record, based solely on equitable grounds,6 serves either of these
purposes.

14

The Third, Eighth and Ninth Circuits have read Kokkonen to preclude ancillary
jurisdiction over orders to expunge criminal records based solely on equitable
grounds. These circuits have rejected the notion that a federal court's
jurisdiction under either 3231 or its "inherent power" provides ancillary
jurisdiction over equitable orders to expunge because such orders do not fit

within Kokkonen's purposes for ancillary jurisdiction. See, e.g., Dunegan, 251
F.3d at 479 (3d Cir.2001) ("We do not believe that [the ancillary jurisdiction
purposes articulated in Kokkonen] contemplate a petition for the expungement
of a criminal record."); Meyer, 439 F.3d at 859-60 (8th Cir.2006) ("In light of
the Supreme Court's instruction narrowing the scope of ancillary jurisdiction in
[Kokkonen], we are convinced that a district court does not have ancillary
jurisdiction to expunge a criminal record based solely on equitable grounds.");
Sumner, 226 F.3d at 1014 (9th Cir.2000) ("Expungement of a criminal record
solely on equitable grounds . . . does not serve [the ancillary jurisdiction
purposes articulated in Kokkonen].").
15

The Second, Seventh, Tenth and D.C. Circuits, however, have concluded that
district courts do have ancillary jurisdiction to expunge records based on
equitable considerations.7 See, e.g., United States v. Flowers, 389 F.3d 737, 739
(7th Cir.2004) ("The test for the expungement of judicial records is a balancing
test: `if the dangers of unwarranted adverse consequences to the individual
outweigh the public interest in maintenance of the records, then expunction is
appropriate.'") (quoting United States v. Janik, 10 F.3d 470, 472 (7th
Cir.1993)); United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir.1977) ("
[E]xpungement lies within the equitable discretion of the court, and relief
usually is granted only in `extreme circumstances.'"); Livingston v. U.S. Dep't
of Justice, 759 F.2d 74, 78 (D.C.Cir.1985) ("It is well established, and
undisputed by the parties to this case, that courts have the inherent, equitable
power to expunge arrest records."); U.S. v. Linn, 513 F.2d 925, 927 (10th
Cir.1975) ("Certain of the cases call for a `balancing' of the equities between
the Government's need to maintain extensive records in order to aid in general
law enforcement and the individual's right to privacy."). However, these cases
either predate Kokkonen, or they fail to address that decision, which raises
questions as to their continued viability.

16

We agree with the Third, Eighth and Ninth Circuits that Kokkonen answers the
question raised in this case. As the Kokkonen court held, ancillary jurisdiction
exists only (1) to permit disposition of interrelated claims by a single court and
(2) to enable a court to "manage its proceedings, vindicate its authority, and
effectuate its decrees." 511 U.S. at 379-80, 114 S.Ct. 1673. As in Kokkonen, the
original claims brought before the district court in this case have nothing to do
with the equitable grounds upon which Coloian seeks the expungement of his
criminal record. Moreover, "the power asked for here is quite remote from what
courts require in order to perform their functions." Id. at 380, 114 S.Ct. 1673
(emphasis added). The existence and availability of Coloian's criminal records
do not frustrate or defeat his acquittal. In fact, the records are entirely consistent
with and respectful of the jury's ultimate judgment in Coloian's case, as they

accurately document his arrest, trial and acquittal. Thus, Kokkonen forecloses
any ancillary jurisdiction to order expungement based on Coloian's proffered
equitable reasons. We therefore find that the district court did not have
jurisdiction to consider Coloian's request for the expungement of his criminal
record on equitable grounds.
III. Conclusion
17

Because we find that the district court lacked jurisdiction to consider Coloian's
motion, we vacate the district court's order and remand for dismissal for want
of jurisdiction.

18

Vacated and Remanded with instructions to dismiss.

Notes:
1

During the trial, the district court denied Coloian's motion for judgment of
acquittal

The word "expunge" generally refers to the physical destruction of

informationDubnoff v. Goldstein, 385 F.2d 717, 724 (2d Cir.1967). With
respect to criminal records, expunction refers to the process of sealing or
destroying the record of a criminal conviction after expiration of a certain time.
U.S. v. Johnson, 941 F.2d 1102, 1111 (10th Cir.1991) (citing Black's Law
Dictionary at 522 (5th ed.1979)).

Coloian does not appeal the district court's ruling on his motion to seal

Congress has specifically provided for expungement or related remedies in

narrowly defined circumstancesSee, e.g., 5 U.S.C. 552a(d), (g)(1)(C)
(allowing claims to amend public records that are inaccurate); 10 U.S.C.
1565(e) (mandating expungement of DNA records when military conviction is
overturned); 18 U.S.C. 3607(c) (allowing for expungement of criminal
records in certain drug possession cases); 21 U.S.C. 844a(j) (allowing for
expungement of civil penalty records in certain drug possession cases); 42
U.S.C. 14132(d) (allowing for expungement of DNA records held by the FBI
in certain cases where conviction is overturned). Also, federal courts have
upheld the expungement of criminal records as a remedy for arrests or
prosecutions that violate federal statutes or the constitution. See, e.g., United
States v. McLeod, 385 F.2d 734, 738-39 (5th Cir.1967)(directing the
expungement of all arrests and prosecutions in the record as a remedy for state's

violation of the Civil Rights Act); Sullivan v. Murphy, 478 F.2d 938, 960
(D.C.Cir.1973) (same, as remedy for government's violation of the
Constitution). Coloian does not seek expungement under any of these statutes,
nor does he seek expungement as a remedy for the violation of his statutory or
constitutional rights.
5

Examples of a district court's proper exercise of ancillary jurisdiction "to enable

a court to function successfully" include the power to compel payment of
sanctions for misconduct,Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct.
2123, 115 L.Ed.2d 27 (1991), the power to fine for contempt or imprison for
contumacy, United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259
(1812), and the power to appoint an attorney to prosecute defendants for
criminal contempt, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.
787, 795, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). See Kokkonen, 511 U.S. at
380, 114 S.Ct. 1673 (citing also 13 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure 3523 (1984)).

When we refer to "equitable grounds," we mean grounds that rely only on

notions of fairness and are entirely divorced from legal considerations. Other
circuit courts have also emphasized this distinctionSee, e.g., United States v.
Meyer, 439 F.3d 855, 860-62 (8th Cir.2006) (holding that "a district court does
not have subject matter jurisdiction over a motion to expunge that is based
solely on equitable considerations," but that it "may have ancillary jurisdiction
to [expunge] in extraordinary cases to preserve its ability to function
successfully by enabling it to correct an injustice caused by an illegal or invalid
criminal proceeding"); United States v. Dunegan, 251 F.3d 477, 480 (3d
Cir.2001) (holding that a district court did not have jurisdiction over a motion to
expunge criminal records based on equitable grounds, but declining to decide
"whether a record may be expunged on the basis of Constitutional or statutory
infirmity in the underlying criminal proceedings or on the basis of an unlawful
arrest or conviction"); United States v. Sumner, 226 F.3d 1005, 1014-15 (9th
Cir.2000) (holding that expungement of a criminal record "solely on equitable
grounds, such as to reward a defendant's rehabilitation and commendable postconviction conduct" did not serve the purposes of ancillary jurisdiction as
articulated in Kokkonen, and that "a district court's ancillary jurisdiction is
limited to expunging the record of an unlawful arrest or conviction, or to
correcting a clerical error").

Although the Seventh and Tenth Circuits have not specifically tied the district
court's power to expunge criminal records to a particular jurisdictional basis, we
interpret the silence to mean that the power is grounded on a district court's
ancillary jurisdictionCf. Kokkonen, 511 U.S. at 380, 114 S.Ct. 1673 (viewing
claims of a district court's "inherent power" as falling under ancillary

jurisdiction).